United States v. Loughner

Decision Date05 March 2012
Docket Number11–10504,11–10432.,Nos. 11–10339,s. 11–10339
Citation12 Cal. Daily Op. Serv. 2640,672 F.3d 731,2012 Daily Journal D.A.R. 2951
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jared Lee LOUGHNER, Defendant–Appellant.
CourtU.S. Court of Appeals — Ninth Circuit


Judy Clarke, Clark & Rice, APC; Mark Fleming, Law Office of Mark Fleming; Reuben Camper Cahn, Ellis M. Johnston III, Janet Tung, Federal Defenders of San Diego, Inc., San Diego, CA, for the appellant.

Ann Birmingham Scheel, Acting United States Attorney, Dennis K. Burke, United States Attorney, Christina M. Cabanillas, Appellate Chief, Bruce M. Ferg, Assistant United States Attorney, United States Department of Justice, Tucson, AZ, for the appellee.

Aaron M. Panner, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, D.C., for Amici American Psychiatric Association and the American Academy of Psychiatry and the Law.Appeal from the United States District Court for the District of Arizona, Larry A. Burns, District Judge, Presiding. D.C. No. 4:11–cr–00187–LAB–1.


Opinion by Judge BYBEE; Concurrence by Judge WALLACE; Dissent by Judge BERZON.


BYBEE, Circuit Judge:

San Francisco, California *

Jared Lee Loughner stands accused of the January 2011 murder of six people, including U.S. District Judge John Roll, and the attempted murder of thirteen others, including U.S. Representative Gabrielle Giffords. Loughner was committed to a Bureau of Prisons (“BOP”) medical facility to determine if he was competent to stand trial. After the medical staff concluded that he was not competent, the district court ordered him committed for a period of four months to determine if he could be restored to competency. While he was in custody, the facility determined that Loughner was a danger to himself or others and conducted hearings pursuant to 28 C.F.R. § 549.46(a), referred to as Harper hearings, to determine if he could be involuntarily medicated. See Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). The district court denied Loughner's emergency motion to enjoin the involuntary medication decision of June 14, 2011. The appeal from that order is before us as No. 11–10339. In the interim, Loughner was involuntarily medicated on an emergency basis pursuant to 28 C.F.R. § 549.43(b) (2010) and the district court denied Loughner's emergency motion for a prompt post-deprivation judicial hearing. The appeal from that order is before us as No. 11–10432. The district court likewise denied Loughner's emergency motion to enjoin the involuntary medication decision of September 15, 2011. Subsequently, the district court ordered Loughner's commitment to be extended by an additional four months to render him competent to stand trial. See 18 U.S.C. § 4241(d). The appeal from the September 15 involuntary medication and extension of commitment orders is before us as No. 11–10504. We affirm both orders at issue in appeal No. 11–10504. We dismiss appeals No. 11–10339 and No. 11–10432 as moot.


On March 3, 2011, a federal grand jury indicted Jared Lee Loughner for multiple criminal offenses arising from a January 8, 2011, shooting incident in Tucson, Arizona, in which six people were killed and thirteen people were injured. The charges included the attempted assassination of Congresswoman Gabrielle D. Giffords, the murder of Federal Judge John M. Roll, the murder and attempted murder of other federal employees, injuring and causing death to participants at a federally provided activity, and several related weapons offenses.

At a detention hearing on January 10, 2011, the district court determined that Loughner was a danger to the community and should be federally detained pending trial. Magistrate Judge Lawrence O. Anderson found that there was no condition or combination of conditions that would reasonably assure the safety of the community, and ordered Loughner committed to the custody of the Attorney General for confinement in a corrections facility.

On March 9, 2011, the district court granted the government's motion for a competency examination to be conducted at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri (“FMC–Springfield”), by BOP medical personnel, pursuant to 18 U.S.C. § 4247. BOP psychologist Dr. Christina Pietz and court-appointed psychiatrist Dr. Matthew Carroll determined that Loughner was not, at that time, competent to stand trial and diagnosed him with schizophrenia. The district court agreed, and on May 25, 2011, ordered Loughner committed for a four-month period of hospitalization at FMC–Springfield to determine whether he could be restored to competency, pursuant to 18 U.S.C. § 4241(d)(1).

A. Involuntary Medication

After he was returned to FMC–Springfield, Dr. Pietz asked Loughner, “on a daily basis,” if he was willing to take psychotropic medication voluntarily, but Loughner consistently declined to engage in such treatment.

1. Harper I

On June 14, FMC–Springfield staff conducted an administrative hearing, pursuant to the procedures outlined in 28 C.F.R. § 549.43 1 and Harper, 494 U.S. 210, 110 S.Ct. 1028, to determine whether Loughner should be forcibly medicated on dangerousness grounds (“ Harper I hearing”). Dr. Carlos Tomelleri, an independent psychiatrist not involved in Loughner's diagnosis or treatment, presided over the Harper I hearing, and Dr. Pietz and Dr. Robert Sarrazin, Loughner's treating psychiatrist, also participated. John Getchell, a licensed clinical social worker (“LCSW”), was appointed by FMC–Springfield to serve as Loughner's staff representative in the administrative hearing process. According to Getchell, he met with Loughner the day before the hearing to explain his (Getchell's) role in the proceeding, the purpose of the hearing, Loughner's rights, and to answer any questions Loughner may have about the process. In a written statement, Getchell stated that he informed Loughner of his right to have witnesses present at the hearing, but that Loughner did not wish to have any witnesses present. Before the hearing, Getchell again asked if Loughner wanted any witnesses and Loughner responded, “Just my attorney.” Getchell then notified Dr. Pietz and Dr. Tomelleri of Loughner's “request to have an attorney present for the proceeding.”

The Harper I hearing took place in Loughner's cell. At the outset, Loughner said “You have to read me the Bill of Rights or I won't talk to you” and “I'm not an American citizen.” After Dr. Tomelleri explained that that was not part of the hearing procedure, Loughner barricaded himself behind his bed and refused to participate in the hearing, even though he was encouraged to do so by Dr. Pietz, Dr. Sarrazin, and Mr. Getchell. When he finally spoke, Loughner stated he would “plead the fifth,” he denied that he had a mental illness, and he responded “No” when asked if he would consider taking medication that would improve his condition. There is no record of Getchell making any statements or inquiries on Loughner's behalf.

In the Involuntary Medication Report, Dr. Tomelleri authorized involuntary medication after finding that Loughner's mental disease made him a danger to others. In the Justification section of the report, Dr. Tomelleri explained that Loughner had become enraged while being interviewed and yelled obscenities; had thrown objects, including plastic chairs and toilet paper; had spat on his attorney, lunged at her, and had to be restrained by staff; and his behavior had been characterized by indications that he was experiencing auditory hallucinations, including inappropriate laughter, poor eye contact, yelling “No!” repeatedly, and covering his ears.

Noting that Loughner had been diagnosed with schizophrenia, Dr. Tomelleri explained in the report that [t]reatment with psychotropic medication is universally accepted as the choice for conditions such as Mr. Loughner's.” Dr. Tomelleri rejected other, less intrusive measures (e.g., psychotherapy, minor tranquilizers, seclusion and restraints), because they “are not practicable,” “do not address the fundamental problem,” “have no direct effect on the core manifestations of the mental disease,” or “are merely temporary protective measures with no direct effect on mental disease.”

Loughner was advised that if involuntary medication was approved, he would have twenty-four hours to appeal the decision to the Administrator of the Mental Health Division. With the help of Getchell, Loughner submitted a written appeal that was laced with profanities. The Associate Warden of Health Services (“Associate Warden”) denied the appeal. The Associate Warden restated the evidence and found that [w]ithout psychiatric medication, you are dangerous to others by engaging in conduct, like throwing chairs, that is either intended or reasonably likely to cause physical harm to another or cause significant property damage.... At this time, medication is the best treatment for your symptoms.”

On June 21, 2011, FMC–Springfield began medicating Loughner as prescribed by Dr. Sarrazin. After becoming aware of Loughner's involuntary medication, defense counsel filed an emergency motion in the district court on June 24, asking the court to enjoin FMC–Springfield from forcibly medicating Loughner. Loughner argued that the involuntary medication order violated his substantive due process rights by treating his mental illness without considering less intrusive methods to ameliorate his dangerousness; failed to consider how the medication would implicate his fair trial rights; and violated his procedural due process rights, as a pretrial detainee, because the hearing should have been held before a court, Loughner's requested witness should have been called, and the specific drug and dosage that would be administered should have been set out in the hearing.

On June 29, 2011, the district court held a hearing on...

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